LaTouche v. Kopp

Background

Valery LaTouche, who was incarcerated at Sing Sing Correctional Facility, filed a self-represented petition under 28 U.S.C. § 2254 challenging his November 15, 2005 conviction in County Court, Rockland County. The respondent was Acting Superintendent M. Kopp.

The court’s records showed that LaTouche had filed an earlier federal petition challenging the same conviction in a prior related proceeding. That petition had been denied on the merits. The court therefore treated the present petition as a “second or successive” petition.

Authorization Requirement

Under 28 U.S.C. § 2244(b)(3)(A), a person must obtain authorization from the appropriate federal court of appeals before filing a second or successive § 2254 petition in a federal district court. The court explained that LaTouche had to ask the United States Court of Appeals for the Second Circuit for permission to pursue the petition.

The opinion states that such a request must show either that the claim relies on a new, retroactive constitutional rule that was previously unavailable, or that the factual basis for the claim could not previously have been discovered with due diligence and would establish, by clear and convincing evidence, that no reasonable factfinder would have found the applicant guilty absent constitutional error.

Ruling

Judge Laura Taylor Swain transferred the action to the United States Court of Appeals for the Second Circuit as a second or successive § 2254 petition. The order closed the action in the district court. It stated that, if the Second Circuit authorized LaTouche to proceed, he could move to reopen the action under the existing civil docket number.

The court also determined that LaTouche had not made a substantial showing that a constitutional right had been denied, so a certificate of appealability would not issue. It further certified that an appeal would not be taken in good faith and denied permission to appeal without paying filing fees.